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A typical example is when a surveyor-proprietor, who is a member of a local church, provides a surveying service in support of a building program. If the surveyor is tax savvy, she will prepare an invoice for the service she contributed to the project, then write off the charge and claim a contribution (assuming her firm shows a profit that year). What the surveyor may overlook in her altruism, however, is that the same liability risk that is present in her for-fee practice is also present in her pro bono work.
Liability and insurance underwriter Victor O. Schinnerer & Company Inc. has advised its policyholders on the subject of providing services on a voluntary basis, stating: “The general rule is that a professional volunteering services must do so in accordance with the same care and diligence as other professionals providing similar service. The lack of a fee for services does not reduce the obligation to use due care.”
Unfortunately, when the generous surveyor-proprietor sends a crew to the site to stake out the lines for a new building, the tendency may be to make it “quick and dirty” so they can get on to another--paying--job. After all, who will find fault with someone contributing time and resources in support of the church? But beware! The church may not sue for negligence, but a neighbor, upon whose land there is an encroachment as a result of the construction, may be quick to sue the surveyor in a third-party action. In this case, Schinnerer advises as follows:
“A firm’s exposure to the possibility of loss is decreased if the client for whom the … pro bono service is being provided understands the risk to the … professional and agrees to waive any claim and protect the … professional from any third-party claims.”
While good advice, my experience has taught me that it is rare to find a client (especially a nonprofit organization) willing to indemnify a professional, whether engineer, architect or surveyor, against third-party claims. Their lawyers will advise sternly against such a contractual agreement. At best, the client may be willing to waive any claim of its own against the professional for any future alleged negligence. The moral to this story is that the same care and diligence is due in pro bono work as in any other project.
Now that we have examined the surveyor-proprietor’s willingness to volunteer his professional services, let’s turn to the activity of a firm’s employees. A surveyor-technician, for example, may offer his services on a weekend in support of the church’s building program without the direct involvement of his employer. Schinnerer has this to say on the subject:
“If a problem occurs on a project for which employees are providing services but for which their employer is not getting a fee, any determination of [professional liability insurance] coverage would be based on whether the firm or an agent of the firm is providing the services. The possibility exists that the firm could be held to have condoned individual actions. Thus, the firm could acquire liability for its imputed professional negligence without insurance coverage for the harm caused by the employee’s negligence. The question is whether the action of the employee can be attributed to the firm.” [emphasis added]
The fact that the employee used the company’s vehicle and company equipment for his volunteer Saturday activity may lead to the conclusion that the firm condoned the individual’s actions.
In these types of cases, the first question is whether the company has liability. The second question is whether the company’s errors and omissions insurance will provide defense coverage. The company hopes that the answer to the first question is no (leaving the employee alone to face the charges). But if the answer to the first question is yes, then the hope is that the answer to the second question is also yes. Note that in settling these questions, there may arise a three-party controversy in which the insurance company, the surveying firm and the employee become mutually adversarial.
This scenario could be expanded to consider the activity of employees moonlighting for fee, an activity also fraught with risk for the employer. But that is an issue for another column. The point is that while surveying firms often provide pro bono services through informal agreement, proprietors should consider a more formal approach with clearly stated company policies for internal control.
1. “Guidelines for Improving Practice.” Number 1, 2008. Note: Schinnerer’s recommendations are not intended to constitute legal advice nor are mine. As always, I advise that you consult with counsel and read your E&O insurance policy carefully.